To kill or to capture? The conundrum facing the Supreme Court and military operations

A local boy watches an inspection at a new prison in Farah province, Afghanistan (ISAF photo/ USAF 1st Lt Mark Graff). Source: Flickr

On 4 February 2016, heads of state and international organisations gathered in Westminster to discuss aid to Syria. At the same time, a mere stone’s throw away in the Supreme Court, the UK Government was finishing its argument in a case which could have profound impact on the way the UK undertakes future military detention operations.

Mohammed and others v Ministry of Defence is one of a number of cases the UK has fought in domestic and European courts regarding the conduct of hostilities in Iraq and Afghanistan.[1] The case before the Supreme Court is of particular interest as it crystallises a number of key issues, not least whether the UK had a legal power to detain people in non-international armed conflict and whether that detention is regulated by international humanitarian law or by human rights law.

The case principally concerns Serdar Mohammed, who was detained by British forces in Afghanistan in April 2010. He was suspected of being a senior Taliban Commander in the area and forensic tests showed that he had indeed come into contact with explosive material used in making IEDs. Mohammed was held by the UK on grounds of ‘mission accomplishment’ for the 96 hours allowed under ISAF standard operating procedures; he then continued to be held longer for ‘logistical reasons’. The UK wanted to transfer Mohammed to the Afghan authorities but they had no room to take him, their detention facilities in Lashkar Gah already being full. The UK held Mohammed for a total of 110 days, using internal military protocols to review and authorise his continued detention. Mohammed challenged the legality of his detention, arguing the UK was mistaken in fact (he was a farmer, not a fighter); that the UK had no legal power to detain him; and that in doing so the UK had breached the European Convention on Human Rights, in particular Article 5, which protects the right to liberty and security of the person.

In May 2014, the High Court found that while Mohammed was a lawfully detained by the UK for 96 hours, the rest of his detention was unlawful.[2] Subsequently, the Court of Appeal found that the Security Council Resolutions which authorised detention applied to ISAF, not specifically the UK, and that there was no basis in English law for Mohammed’s continued detention beyond that authorised by ISAF.[3]

These conclusions pose particular challenges for future military operations in non-international armed conflicts. Simply put – and there are some fiendishly complex legal arguments cutting across these points – there are four main issues. First and foremost, what do UN Security Council Resolutions actually authorise? Second, does a UNSCR trump regional or domestic human rights obligations? Third, to whom do these authorisations apply? And fourth, what law regulates the procedural protections in place when a person is detained?

What do UN Security Council Resolutions actually authorise?

UNSCR 1386, which set up ISAF, authorised ‘Member States participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate’. The Supreme Court has to consider whether the phrase ‘all necessary measures’ includes detention as well as the use of lethal force. The Government argue it must, a fortiori: if the resolution authorises the use of lethal force, it must, as a matter of humanity, authorise the lesser measure of detention. The question of whether that authority to detain extends only to those who would otherwise be legitimately targeted, or a wider group of people (which is contemplated in international humanitarian law), is up for debate. To the defence establishment in the UK this ‘kill or capture’ dilemma is an absurdity. The lawyers acting for the claimants reject that logic, arguing instead the issue isn’t one of practical context but legal validity, and the UK simply didn’t have a legal basis in place at the time of Mohammed’s detention. A valid legal basis, they argue, could be a UNSCR which explicitly authorises internment – such as UNSCR 1546 for Iraq – or domestic legislation performing the same function as the U.S. Authorization for Use of Military Force.[4]

Does a UNSCR trump regional or domestic human rights obligations?

The relationship between the ECHR and UN Security Council resolutions has been broached – some might say sidestepped – before. In Al-Jedda, Strasbourg concluded that the Security Council resolutions authorising internment in Iraq did not conflict with any of the UK’s obligations under Article 5(1) of the ECHR, because the Security Council did not ‘intend to impose “any obligation’’ on member states to breach fundamental human rights’.[5] The preceding decision in the House of Lords disagreed, finding that Article 103 of the UN Charter created an obligation for the UK to detain and thus affected Article 5(1), but that the UK ‘must ensure that the detainee’s rights under Article 5 are not infringed to any greater extent than is inherent in such detention’.[6] The Ministry of Defence would prefer to follow the House of Lords and modify the content of Article 5. Whether Strasbourg or the Supreme Court is better placed to interpret the legal effect of Security Council Resolutions on the UK depends on one’s perspective of whether human rights law should be the dominant lens through which international legal obligations are viewed.

To whom do these authorisations apply?

The argument goes that if the UNSCR authorised ISAF to detain people, and the UK deviated from ISAF standard practice, the UK cannot subsequently claim that the UNSCR authorised it to detain. But as Aughey & Sari point out, the resolution authorises Member States and not ISAF itself. In addition, each nation in ISAF retained the discretion to apply national caveats depending on policy and legal obligations. If the court finds that either the ECHR trumps the UN Resolution in these circumstances, or that Article 5 governs the procedure for detention, the discretion the UK retains vis a vis coalition procedures could in future potentially be circumscribed by the ECHR.

Which brings us onto our last point; can international humanitarian law (IHL) guarantee a sufficient level of protection for the detainee’s due process rights in a non-international armed conflict (NIAC) as opposed to an international armed conflict (IAC)?

What law regulates the procedural protections in place when a person is detained?

The question of whether IHL, acting as lex specialis, can modify or displace Article 5 in an IAC was addressed by the European Court in Hassan.[7] In this decision – which is a critical part of the Government’s argument, and which wasn’t made at the time the Court of Appeal heard Mohammed – the ECtHR recognised that IHL is specially designed for armed conflict, and the Geneva Conventions have procedural protections designed for captured combatants and civilians. Unfortunately, treaty law covering IAC is far more extensive than for NIAC, which is reduced to relying on Common Article 3 of the Geneva Conventions, Additional Protocol II and customary international law.

The Government argued that IAC protections should apply to NIAC by analogy, and do in any event by custom. For example, the Iraq conflict went through various characterisations – international armed conflict, occupation, non-international armed conflict. Each of these classifications has different legal rules and to have different rules applying from one day to the next is logically and practically challenging, if not impossible. In addition, the mouth twisting phrase ‘internationalised non-international armed conflict’ is used to describe the situation in Afghanistan from 2001 onwards – regardless of whether it was officially a NIAC, the British experience in Helmand looked, sounded and felt very much like any other international conflict on the ground. However, if Article 5(1) was engaged, as Mohammed and others claim, their rights were infringed by the lack of due process afforded to them on detention. Even if applicable, neither CA3, APII or custom provided any procedural protections for detainees, but human rights law did and was not applied.

The way the Supreme Court reasons this issue will have implications for the structure of the detention operations and for the level of protections afforded to detainees in future. Will they, for example, have their detention approved by a military official, a military judge, or a civilian judge? How would the practicalities of such hearings be managed?

Serdar Mohammed shows us that the relationship between international humanitarian law and human rights law is not necessarily a bed of roses; at times it more closely resembles a nest of thorns. The case also raises many other questions; what locus do different courts have to decide how international law should be balanced and interpreted? How can IHL be applied by analogy to NIACs, despite clear reluctance of states in the treaty negotiation process to do so? Can human rights be divided and tailored, or derogated from in an implied manner by states? Is it possible to establish customary international law from practice in non-international armed conflicts?

The Supreme Court is in the unenviable position of having to decide a host of principles which will affect the scope and shape of future military detention operations. The UK Government has ruled out boots on the ground in Syria for now.[8] But if it did deploy the armed forces, it would have to shape the jus ad bellum justification in the UNSCR, the rules of engagement and the process of detention operations in line with this, and other, legal precedents.

W. M. Hart is a doctoral candidate at the Department of War Studies, King’s College London, researching the effect of human rights litigation on military operations.

Notes:

[1]Mohammed and others (Respondents) v Ministry of Defence (Appellant), currently before the Supreme Court, Case ID: UKSC 2015/0218 is joined with Abd Ali Hameed Ali Al-Waheed v Ministry of Defence. Mr. Al-Waheed was detained by British forces in Iraq.